Recording Industry vs The People: January 2006

Tuesday, January 31, 2006

Tanya Andersen Case Heats Up. RIAA Seeks Dismissal of Counterclaims. Tanya Seeks Dismissal of RIAA's Complaint.

The Tanya Andersen case in Oregon has heated up.

The RIAA has made a motion to dismiss Ms. Andersen's counterclaims.

And Ms. Andersen has made a motion to dismiss the RIAA's complaint.

Both motions are scheduled to be argued on February 27th.

Additionally, Ms. Andersen has filed an amended answer and counterclaims.

At this point I have only incomplete litigation documents. Will post others as they become available:

Defendant's Memorandum of Law in Support of Motion to Dismiss Complaint
Plaintiff's Memorandum of Law In Support of Motion to Dismiss Counterclaims
Defendant's Memorandum of Law in Opposition to Plaintiff's Motion to Dismiss Counterclaims
Defendants's Amended Answer and Counterclaims

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Friday, January 27, 2006

p2pnet article: "Help Zi Against the RIAA"

Great article by Jon Newton in P2PNet :

Help Zi against the RIAA

" p2p news / p2pnet: The members of the Big Four Organized Music cartel spare no expense in their bitter war against the 'consumers' whom, they claim, are thieves and criminals who "illegally" download music without paying for it.

"This isn't, however, a criminal matter, efforts by the cartel's RIAA to elevate it to that level notwithstanding. It's a civil one. And what's at issue isn't if someone's broken a law – it's whether or not he or she has infringed a copyright, which is a very long way from "criminal" or "illegal".

"But this time the Big Four aren't merely beating up on defenceless men, women and children who have no hope of matching their bottomless legal and financial resources.

"Now the labels have You and the World Wide Web to contend with.

"John Doe Number 8 – one of the cartel's more than 17,000 victims – wants a court to throw out an RIAA ex parte discovery order filed in Atlantic Recording v Does 1-25. But the RIAA's (Recording Industry Association of America) Jonathan Whitehead claims the metadata in John Doe Number 8's shared files folder shows illegal copying took place.

"JDN 8's lawyer, Ray Beckerman, recently asked Zi Mei to check this out in detail.

"Zi, submitted an affidavit and now he's asking you to give him a hand."

Complete Article

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Thursday, January 26, 2006

Calling All Techs!!! RIAA Defends Its "Investigation", Says Metadata Shows Illegal Copying

In its opposition to defendant John Doe Number 8's motion to vacate the RIAA's "ex parte discovery order", filed today in Atlantic Recording v. Does 1-25, the RIAA has submitted a declaration of Jonathan Whitehead -- an RIAA Vice President -- that the metadata in John Doe Number 8's shared files folder shows that illegal copying took place:

Declaration of Jonathan Whithead
Exhibit A
Exhibit B

This would appear to be in contradiction to the earlier affidavit of computer programmer Zi Mei in support of the motion.

Any input from the tech community would be of interest. The response to the Whitehead declaration is due February 7th.

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Wednesday, January 25, 2006

RIAA Argues: Merely "Making Available for Distribution" is a Copyright Violation!

In opposition papers served yesterday in Elektra v. Barker in Manhattan federal court, the RIAA has argued that merely making files "available for distribution" is in and of itself a copyright violation.

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Thursday, January 19, 2006

Briefing Schedule Set in Atlantic v. Does 1-25

The Court signed a stipulation extending the RIAA's time to serve opposition papers to January 25th in Atlantic v. Does 1-25. Now,

-RIAA opposition papers due January 25th;

-John Doe #8's reply papers due February 6th.

The January 6th conference at which the motion was first discussed was public and tape recorded by the Court, and a transcript can be purchased from the Court.

The 'ex parte discovery order' continues to be stayed:

"Memo endorsed" order of Judge Laura Taylor Swain

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

New Contested Case in Minnesota: Elektra v. McCall

Another defendant has chosen to fight back, this time in federal court in Minnesota.

Copies of the complaint and answer in Elektra v. McCall are set forth below:

Complaint

Answer

The defendant, Mr. McCall, is represented by Brian N. Toder of
Chestnut & Cambronne, P.A. in White Bear Lake, Minnesota. (email: btoder@chestnutcambronne.com)

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Wednesday, January 11, 2006

Digital Music News Reports: P2P File-Sharing Levels More Than Double What They Were When RIAA Suits Started

Digital Music News reports:

P2P File-Sharing Levels Hit All-Time High in December

File-sharing levels hit record levels in December, according to figures provided by leading P2P monitoring firm BigChampagne. The data, obtained by Digital Music News, shows an average simultaneous user level of 6.98 million during the holiday month. That beats a previous high of 6.87 million, recorded in July, and easily doubles a figure of 2.89 million from September, 2003, when file-sharing lawsuits first began.

Complete Story

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Sunday, January 08, 2006

Hearing Held January 5th in RIAA case against 14-year old: Priority Records v. Brittany Chan

In the RIAA's Port Huron, Michigan, case against 14-year old Brittany Chan (see RIAA Deliberately sues 14-year old), the Court conducted a hearing on Thursday, January 5, 2006, in order to determine the RIAA's motion for appointment of a guardian ad litem to protect the interests of the defendant.

Notice of Hearing
(Alternate link)

The hearing took place at the federal courthouse in Port Huron, Michigan.

Only the attorneys spoke; no testimony of witnesses was elicited.

The hearing dealt with such questions as
(a) if a guardian ad litem were to be appointed, who would pay his or her fees?
(b) who will pay the fees of the guardian's attorney?
(c) was it a violation of the court rules for the RIAA lawyer to use the minor's name in the caption?

The judge took the case under submission, and will issue a written decision in due course.

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaaradar

Wednesday, January 04, 2006

Motion to Quash Subpoena and Sever as to John Does 1-25 Denied in Atlantic v. Does

The motion to quash the subpoena in Atlantic Records v. John Does 1-25 has been denied by judge Laura Taylor Swain, in Manhattan federal court. The judge agreed with the holding of Judge Colleen McMahon in Elektra v. Santangelo that the RIAA's conclusory allegation that defendants "downloaded, distributed, and/or made available for distribution" was a sufficiently specific allegation of copyright infringement to satisfy federal pleading standards.

The motion to sever as to John Does 2-25 was denied "without prejudice". The judge said that motion could be reinstituted when the defendants were actually served with summonses and complaints. (The judge was apparently unaware that the RIAA has no intention of serving the defendants with summonses and complaints in the action that is before her.).

The order is not appealable according to a recent ruling of a 3-judge panel in Loud v. Does from the U.S. Court of Appeals for the Second Circuit.

Order denying motion to (a) quash subpoena and(b) dismiss and sever as to John Does 2-25.

"Memo endorsed" order deeming motion to vacate ex parte order withdrawn.

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Monday, January 02, 2006

Programmer Challenges RIAA "Investigation" in Court Papers Filed Dec. 28th to Vacate "Ex Parte" Order

At the core of the whole RIAA litigation process are:
(1) the mass lawsuit against a large number of "John Does";
(2) the "ex parte" order of discovery; and
(3) the subpoenas demanding the names and addresses of the "John Does".
(For more detailed description see "How the RIAA Litigation Machine Rolls Along"(Digital Music News))

In Atlantic v. John Does 1-25, a case pending in federal court in Manhattan, a midwesterner sued as John Doe Number 8 has made motions which seek to knock out all three (3) prongs of the RIAA litigation machine.

On December 1st he made a motion to sever the mass lawsuit, and dismiss as to John Does 2-25, on the ground that it is impermissible to join 25 unrelated defendants under the federal rules, where there is no connection between the defendants other than the fact that they are accused of engaging in similar, but unconnected, conduct.

Also on December 1st, he moved to quash the subpoena issued to his ISP, on the ground that the RIAA has not sufficiently alleged any copyright infringement.

Today, December 28th, he has moved to knock out the third underpinning of the RIAA John Doe weaponry -- the ex parte order.

Notice of Motion to Vacate Ex Parte Order
(Alternate link)(Alternate link #2)(Alternate link #3)
Affidavit of Zi Mei in Support of Motion
(Alternate link)(Alternate link #2)
Affidavit of Ty Rogers In Support of Motion
(Alternate link)(Alternate link #2)
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit 1 to Exhibit D (part 1)
Exhibit 1 to Exhibit D (part 2)
Exhibit 1 to Exhibit D (part 3)
Exhibit 1 to Exhibit D (part 4)
Exhibit 1 to Exhibit D (part 5)
Exhibit 1 to Exhibit D (part 6)
Exhibit E
Exhibit F
Exhibit G
Memorandum of Law In Support of Motion
(Alternate link)(Alternate link #2)
Appendix 1 to Memorandum of Law
Appendix 2 to Memorandum of Law
Appendix 3 to Memorandum of Law

In addition to pointing out that the RIAA has failed to submit any proper evidentiary showing that it has a case -- which is necessary in order to obtain an order permitting discovery of identities -- John Doe #8 has also submitted the affidavit of programmer Zi Mei, who attacks the validity of the Media Sentry investigation upon which the lawsuit was based.

The case is pending before Judge Laura Taylor Swain, in the United States District Court for the Southern District of New York, in Manhattan.

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa mp3 independent

JUDICIAL QUOTATIONS

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers
"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37
"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555
"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4
"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4
"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008
"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532
"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535
"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053
"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08
"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603
"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset
"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2."
-Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992
"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611
"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048
"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas
"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620
"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."
-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove